State v. Gordon

• Decision Date: 16 December 1911
• Citation: 142 S.W. 315,238 Mo. 168
• Parties: STATE ex rel. RUMBOLD, Adjutant General, v. GORDON, State Auditor.
• Court: Missouri Supreme Court

142 S.W. 315

238 Mo. 168

STATE ex rel. RUMBOLD, Adjutant General, v. GORDON, State Auditor.

Supreme Court of Missouri.

December 16, 1911.

1. MANDAMUS (§ 159)—PROCEEDINGS—APPEARANCE OF RESPONDENT.

Where respondent makes return without the service of the alternative writ of mandamus, the petition stands as and for the writ itself.

2. MANDAMUS (§ 165)—PROCEEDINGS—JUDGMENT ON THE PLEADINGS.

In mandamus, relator's motion for judgment on the pleadings is in the nature of a demurrer to the return, and admits all of the facts well pleaded.

3. STATES (§ 63) — INCREASE OF COMPENSATION—"TERM OF OFFICE."

Laws 1905, p. 221, § 4, provided that the salary of the Adjutant General should be $2,000 per annum, and that the Governor shall appoint the Adjutant General, who shall hold office during the term of the Governor, and may be removed by him at his pleasure. Laws 1909, p. 674, § 3 (Rev. St. 1909, § 8334), fixes the salary of the Adjutant General at $2,500 per annum. Held, that, despite Const. art. 14, § 8, providing that the compensation of state officers shall not be increased during their terms of office, an Adjutant General appointed under Laws 1905, and holding over under Laws 1909, was entitled to the additional compensation, for he was removable at the pleasure of the Governor, and hence had no term of office, for a term of office as well as any term implies the existence of a definite boundary.

In Banc. Mandamus by the State, on the relation of Frank M. Rumbold, Adjutant General, against John P. Gordon, State Auditor. Peremptory writ issued.

Harvey C. Clark, Arthur L. Oliver, and Allen C. Orrick, for relator. Elliott W. Major, Atty. Gen., and Chas. G. Revelle, Asst. Atty. Gen., for respondent.

LAMM, J.

Relator, contending his salary as Adjutant General is $2,500 per annum, and respondent, State Auditor, contending it is but $2,000 per annum, sued by mandamus to compel an audit and payment of his salary at the former figure. Respondent appears without service of an alternative writ. and makes his return. By that course the petition stands as and for the writ itself for the purposes of the case and the return.

On the return coming in, relator filed a motion for judgment on the pleadings. Such motion is in the nature of a demurrer to the return. Thereby (barring mere legal conclusions, inferences, and comments) relator elects to stand on the admissions, and allegations of fact well pleaded in the return. They are taken as true, and all allegations of the petition sufficiently traversed by the return are taken as false. Attending to respondent's return, it appears therefrom there is a main question, which, if ruled in favor of respondent, then (and not till then) other questions raised by the return demand determination. If, however, it be ruled in favor of relator, then such other questions have no place in the case and may be laid out of view, as will presently appear. Before formulating that main question, we shall state those admissions and averments of the return on which it arises, viz.: The return admits, to wit: (1) That the Forty-Sixth General Assembly passed an act approved by the Governor with an emergency clause, putting it into effect March 15, 1911, whereby $5,000 was appropriated to pay the salary of the Adjutant General for the years 1911 and 1912. Laws 1911, p. 32, § 8. (2) That there are funds in the treasury available to pay said appropriation. (3) That in 1909 an act was passed fixing the salary of the Adjutant General at the sum of $2,500 per annum, payable monthly. Laws 1909, p. 674, § 3; R. S. 1909, § 8334. (4) That prior to that in 1905 an act was passed making the salary of the Adjutant General $2,000 per annum, payable monthly. Laws 1905, p. 221, § 4. (5) That the same section 4 provides in its final clause that "the Governor shall appoint the Adjutant General and his honorary staff, who shall hold office during the term of the Governor and may be removed by him at his pleasure." It also provides that the staff of the Governor shall consist of an Adjutant General and other named officers, and that he (the Adjutant General) "shall be the military secretary to the Governor." (6) That relator was duly appointed and commissioned Adjutant General of the state on the 11th day of January, 1909, on that day qualified, and (quoting) "entered upon the discharge of his official duties as Adjutant General under such appointment and commission, * * * and has been filling said office of Adjutant General and acting as such officer continually from said 11th day of January, 1909, to the present time." (7) That relator was so appointed and commissioned under said act of 1905, fixing his salary at $2,000 per annum, and that his appointment was for a certain fixed and definite time, to wit, four years after the second Monday of January, 1909. (8) That, the premises considered, his salary could not be legally increased during his said official term because of a constitutional interdiction (Const. § 8, art. 14), viz.: "The compensation or fees of no state, county or municipal officer shall be increased during his term of office; nor shall the term of office of any officer be extended for a longer period than that for which such officer was elected or appointed." (9) That the Legislature was without power to increase relator's salary during his said term. (10) That relator presented to respondent his accounts for a certain three months in 1911 for $625 (i. e., on a salary basis of $2,500), whereupon respondent made no objection thereto except to the amount, which said amount should have been on a salary basis of $2,000 per annum instead of $2,500. (11) The return further alleges, to wit: "Respondent states that relator has not been removed from office, but has acted continuously as the Adjutant General of the state of Missouri from the 11th day of January, 1909, to the present time and is now Adjutant General of said state."

Such are the admissions and averments of the return from which the main question spontaneously springs, viz.: Is the Adjutant General of the state of Missouri an officer of the class coming within the words and intendment of the constitutional provision invoked? If he is not, then the constitutional bar cannot be put up in the way of an increase in his salary. If he is, then, as said, other questions are sprung for decision.

Attending to the main question, its answer finds itself in the very words and intendment of the Constitution. Those words are common to many Constitutions. They were carefully chosen, have been frequently under judicial scrutiny, and have received a definite judicial construction, as will be seen further on. Observe, the Constitution does not say that the salary of no officer can be increased at any time. It says such salary shall not be increased during a certain time or while a certain thing lasts. What is that time or thing? It is "his term of office." Therefore the officer in mind is not any officer, but is one of a definite kind, one who has an official term. If an officer has no "term of office, he does not measure up to the constitutional subject-matter, and is not within the words or intendment of the Constitution. Undoubtedly the Adjutant General is an officer and has an office, but has he a "term of office"? Or, to turn the phrase end for end, to let it interpret itself, has he an office with a "term"? In the nature of things there can not be a term of office unless the office has a term. This idea is fortified by the constitutional interdiction against lengthening a term of office; for it is a logical absurdity to speak of not extending a term of office unless the term exists to extend. A "term" at root, is the same as "terminus," a boundary limit, and there can be no boundary limit without a fixed or certain beginning and a fixed or certain ending. A serviceable sidelight is thrown on the matter by reference to some familiar principles of real estate law. The word "term" is of common use in conveyancing. A lease for years is a term, and, before an estate for years can be a term, it must have a certain beginning and a certain ending, its duration must "be measured by fixed periods, as by years, months, weeks," etc. 2 Preston on Conveyancing, p. 158. Again (Id. 159 et seq.): "When it is said * * * in the language of Lord Coke, `regularly in every lease for years, the term must have a certain beginning and a certain end,' this is to be understood in its legal and technical sense. The only circumstance required in limitations for terms is that a precise time shall be fixed for the continuance of the terms; so that, when the commencement of the term is ascertained, the period of determination, by effluxion of time, may be known with certainty." Idalia Co. v. Norman, 232 Mo., loc. cit. 671 et seq., 135 S. W. 49, 34 L. R. A. (N. S.) 1069. So, agreeably to the same end, it is good doctrine that the maxim, that is certain which can be made certain ("Id certum est," etc.), is applied in resolving any doubt on whether a "term" is granted. Thus, if the beginning is certain, and if the end can be made certain by reference to some mentioned certainty, a term is granted. By the same token a lease without a "term" creates a tenancy at will, unless by reservation of annual rent it may be construed on equitable principles as a lease from year to year. See Idalia Case, supra.

But the matter need not rest on mere parity of reasoning. Says a sound author (Mechem's Public Offices and Officers, § 285): "The word `term,' when used in reference to the tenure of office, means ordinarily a fixed and definite time, and does not apply to appointive offices held at the pleasure of the appointing power." In accord therewith is another standard work (Throop on Public Officers, § 303): "The word `term' is uniformly used to designate a fixed and definite period of time. * * * And an officer who holds his office at the pleasure of...